Sunday, February 5th, 2023
Sunday, February 5th, 2023

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Judge rules for property owners in lakefront suit

Painesville, Ohio – One of the defendants in a lawsuit that
sought to grant expanded rights to Lake Erie shoreline property
owners is hardly furious with the Dec. 11 landmark ruling by Lake
County Common Pleas Court Judge Eugene A. Lucci.

But furious would describe the mood of others with a stake in
the suit.

The Ohio Lakefront Group filed a lawsuit against the state and
the DNR in 2004 in Lake County, challenging Ohio’s policy for
coastal land management (Ohio Outdoor News, June 8).

The DNR – at the behest of Gov. Ted Strickland – backs Lucci’s
ruling, even though it was a defendant in the lawsuit.

At the same time, environmentalists are seething over the
matter, including two who were also defendants.

Broadly speaking, Lucci said in a 77-page ruling that lakeshore
property lines extend to the existing water line.

Under previous administrations, the DNR, supported by various
environmental groups, said the property lines extended only to the
high-water mark. This distinction under current low-water
conditions means several feet of disputed territory.

It also calls into question various past DNR policies, such as
leasing waterfront land along with public access to the
shoreline.

Lucci said people who got “their feet wet” could still walk
along the shoreline, regardless of its position. And landowners,
would still need a DNR permit to construct a dock, breakwater, or
other structure, Lucci ruled.

“If people can keep their feet wet, they can walk the shore,” he
said. “The public can wade along the beaches of Ohio because it’s
their water. But when they go on the land, it belongs to the
landowner.”

Said Keith Dailey, the governor’s press secretary, “The Ohio
Department of Natural Resources is certainly taking a look at the
ruling, but the governor says it appears to be a common-sense
opinion to a complex issue.”

Dailey did not say whether the state would appeal Lucci’s
ruling.

“Keep in mind that the governor has previously said that no one
should have to lease lakeshore property that they already own,
which was the previous administration’s policy,” Dailey said. “And
the ODNR is in line with this policy review, unless the courts rule
otherwise.”

Strickland made his position known in mid-July, 2007 when he
changed state policy to no longer require property owners to lease
land if it is already included within their property deed.

Environmentalists are not nearly so charitable over the
ruling.

Lucci’s ruling is not the final word on the subject, said Andy
Buchsbaum, regional executive director of the National Wildlife
Federation’s Great Lakes office in Michigan. The federation is also
a defendant in the case.

“I think any objective reading of the opinion shows that it is a
confusing one that leads to extreme results,” he said. “Every wave
that laps unto the Lake Erie shoreline changes the property owner’s
boundary under this opinion.

“We’re looking at all options, and an appeal is one of them,”
Buchsbaum said.

Buchsbaum said a similar case was appealed through several
courts that ultimately led to a unanimous state Supreme Court
ruling “that upheld the public trust to the high-water mark.”

“We are confident that the higher courts in Ohio will affirm the
public’s rights to Lake Erie and its shoreline, up to the ordinary
high-water mark,” he said.

The Columbus-based Ohio Environmental Council is also leaning
toward an appeal, said Public Affairs Director Jack Shaner. If left
to stand, the ruling will move people from the beach and into the
surf, he said.

“This ruling is an unprecedented departure from 100 years of
case law,” Shaner said.

Larry Mitchell, president of the League of Ohio Sportsmen,
called the decision “disappointing and without precedent in
Ohio.”

Tony Yankel of Bay Village, president of the plaintiff Ohio
Lakefront Group, said he hopes the decision will stop governments
from taking private property.

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